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Key disclosure law
Key disclosure laws, also known as mandatory key disclosure, is legislation that requires individuals to surrender s to law enforcement. The purpose is to allow access to material for confiscation or purposes and use it either as evidence in a court of law or to enforce interests. Similarly, mandatory decryption laws force owners of to supply decrypted data to law enforcement. Nations vary widely in the specifics of how they implement key disclosure laws. Some, such as Australia, give law enforcement wide-ranging power to compel assistance in decrypting data from any party. Some, such as Belgium, concerned with , only allow law enforcement to compel assistance from non-suspects. Some require only specific third parties such as telecommunications carriers, certification providers, or maintainers of encryption services to provide assistance with decryption. In all cases, a warrant is generally required. Theory and countermeasures Mandatory decryption is technically a weaker requirement than key disclosure, since it is possible in some cryptosystems to prove that a message has been decrypted correctly without revealing the key. For example, using public-key encryption, one can verify given the message (plaintext), the encrypted message (ciphertext), and the public key of the recipient that the message is correct by merely re-encrypting it and comparing the result to the encrypted message. Such a scheme is called undeniable, since once the government has validated the message they cannot deny that it is the correct decrypted message. As a countermeasure to key disclosure laws, some personal privacy products such as , , and have begun incorporating technology, which enable a single piece of encrypted data to be decrypted in two or more different ways, creating . Another alternative is , which hides encrypted data inside of benign data so that it is more difficult to identify in the first place. A problematic aspect of key disclosure is that it leads to a total compromise of all data encrypted using that key in the past or future; time-limited encryption schemes such as those of Desmedt et al. allow decryption only for a limited time period. Criticism and alternatives Critics of key disclosure laws view them as compromising , by revealing personal information that may not be pertinent to the crime under investigation, as well as violating the right against and more generally the , in nations which respect these rights. In some cases, it may be impossible to decrypt the data because the key has been lost, forgotten or revoked, or because the data is actually random data which cannot be effectively distinguished from encrypted data. A proactive alternative to key disclosure law is law, where the government holds in escrow a copy of all cryptographic keys in use, but is only permitted to use them if an appropriate warrant is issued. Key escrow systems face difficult technical issues and are subject to many of the same criticisms as key disclosure law; they avoid some issues like lost keys, while introducing new issues such as the risk of accidental disclosure of large numbers of keys, theft of the keys by hackers or abuse of power by government employees with access to the keys. It would also be nearly impossible to prevent the government from secretly using the key database to aid mass surveillance efforts such as those exposed by . The ambiguous term key recovery is applied to both types of systems. Legislation by nation This list shows only nations where laws or cases are known about this topic. Antigua and Barbuda The Computer Misuse Bill, 2006, Article 21(5)©, if enacted, would allow police with a warrant to demand and use decryption keys. Failure to comply may incur "a fine of fifteen thousand Caribbean dollars" and/or "imprisonment for two years." Australia The Cybercrime Act 2001 No. 161, Items 12 and 28 grant police with a magistrate's order the wide-ranging power to require "a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to" access computer data that is "evidential material"; this is understood to include mandatory decryption. Failing to comply carries a penalty of 6 months imprisonment. calls the provision "alarming" and "contrary to the common law privilege against self-incrimination." The Crimes Act 1914, 3LA(5) "A person commits an offence if the person fails to comply with the order. Penalty for contravention of this subsection: Imprisonment for 2 years." Belgium The Loi du 28 novembre 2000 relative à la criminalité informatique (Law on computer crime of 28 November 2000), Article 9 allows a judge to order both operators of computer systems and telecommunications providers to provide assistance to law enforcement, including mandatory decryption, and to keep their assistance secret; but this action cannot be taken against suspects or their families. Failure to comply is punishable by 6 months to 1 year in jail and/or a fine of 130 to 100,000 Euros. Canada In Canada key disclosure is covered under the section 11© which states "any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence;" and protects the rights of individuals that are both citizens and non-citizens of Canada as long as they are physically present in Canada. In a 2010 case the court stated that a password compelled from an individual by law enforcement "is inadmissible and that renders the subsequent seizure of the data unreasonable. In short, even had the seizure been preceded by judicial authorization, the law will not allow an order to be joined compelling the respondent to self-incriminate." Czech Republic In the Czech Republic there is no law specifying obligation to issue keys or passwords. Law provides protecting against self-incrimination, including lack of penalization for refusing to answer any question which would enable law enforcement agencies to obtain access to potential evidence, which could be used against testifying person. Finland The Coercive Measures Act (Pakkokeinolaki) 2011/806 section 8 paragraph 23 requires the system owner, its administrator, or a specified person to surrender the necessary "passwords and other such information" in order to provide access to information stored on an information system. The suspect and some other persons specified in section 7 paragraph 3 that cannot otherwise be called as witnesses are exempt from this requirement. France (Law #2001-1062 of 15 November 2001 on Community Safety) allows a judge or prosecutor to compel any qualified person to decrypt or surrender keys to make available any information encountered in the course of an investigation. Failure to comply incurs three years of jail time and a fine of €45,000; if the compliance would have prevented or mitigated a crime, the penalty increases to five years of jail time and €75,000. Germany The German Code of Criminal Procedure grants a suspect the right to deny cooperation in an investigation that may lead to incriminating information to be revealed about him or herself. There is no legal basis that would compel a suspect to hand over any kind of cryptographic key due to this principle. Iceland In there is no law specifying obligation to issue keys or passwords. India Section 69 of the , as amended by the Information Technology (Amendment) Act, 2008, empowers the central and state governments to compel assistance from any "subscriber or intermediary or any person in charge of the computer resource" in decrypting information. Failure to comply is punishable by up to seven years imprisonment and/or a fine. Ireland Section 7(4)(b) of the Criminal Justice (Offences Relating to Information Systems) Act 2017 allows a member of or other persons as deemed necessary (via a search warrant issued by a judge of the District Court (Section 7(1))) to demand the disclosure of a password to operate a computer and any decryption keys required to access the information contained therein. 7(4) A member acting under the authority of a search warrant under this section may— (a) operate any computer at the place that is being searched or cause any such computer to be operated by a person accompanying the member for that purpose, and (b) require any person at that place who appears to the member to have lawful access to the information in any such computer— (i) to give to the member any password necessary to operate it and any encryption key or code necessary to unencrypt the information accessible by the computer,Immediate data destruction (ii) otherwise to enable the member to examine the information accessible by the computer in a form in which the information is visible and legible, or (iii) to produce the information in a form in which it can be removed and in which it is, or can be made, visible and legible. New Zealand New Zealand Customs was seeking power to compel key disclosure. Poland In relatively few known cases in which police or prosecutor requested cryptographic keys from those formally accused and these requests were not fulfilled, no further consequences were imposed on the accused. There's no specific law in this matter, as e.g. in the UK. It is generally assumed that the Polish Criminal Procedure Code (Kodeks Postępowania Karnego Dz.U. 1997 nr 89 poz. 555.) provides means of protecting against self-incrimination, including lack of penalization for refusing to answer any question which would enable law enforcement agencies to obtain access to potential evidence, which could be used against testifying person. South Africa Under the , refusal to disclose a cryptographic key in your possession could result in a fine up to ZAR 2 Million or up to 10 years imprisonment. This requires a judge to issue a decryption direction to a person believed to hold the key. Sweden There are currently no laws that force the disclosure of cryptographic keys. However, there is legislation proposed on the basis that the has already adopted a convention on cyber-crime related to this issue. The proposed legislation would allow police to require an individual to disclose information, such as passwords and cryptographic keys, during searches. The proposal has been introduced to make it easier for police and prosecutors. The proposal has been criticized by the . Switzerland In there is no law specifying obligation to issue keys or passwords. The Netherlands Article 125k of the Wetboek van Strafvordering allows investigators with a warrant to access information carriers and networked systems. The same article allows the district attorney and similar officers of the court to order persons who know how to access those systems to share their knowledge in the investigation, including any knowledge of encryption of data on information carriers. However, such an order may not be given to the suspect under investigation. United Kingdom The (RIPA), Part III, activated by in October 2007, requires persons to decrypt information and/or supply keys to government representatives to decrypt information without a court order. Failure to disclose carries a maximum penalty of two years in jail, or five years in the cases of national security or child indecency. The provision was first used against activists in November 2007, and at least three people have been prosecuted and convicted for refusing to surrender their encryption keys, one of whom was sentenced to 13 months' imprisonment. Even politicians responsible for the law have voiced concerns that its broad application may be problematic. (9) of section 49 failed to consider that mere authentication can be used in a way analogous to encryption, making it possible to circumvent the law via . In 2017, schedule 7 of the was used to charge Muhammad Rabbani with "wilfully obstructing or seeking to frustrate a search examination" after allegedly refusing to disclose passwords. He was later convicted. In 2018, Stephen-Alan Nicholson, the prime suspect in a murder case, was charged with refusing to provide his Facebook password to police. United States The protects witnesses from being forced to incriminate themselves, and there is currently no law regarding key disclosure in the United States. However, the federal case may be influential as . In this case, a man's laptop was inspected by customs agents and child pornography was discovered. The device was seized and powered-down, at which point technology made the evidence unavailable. The judge held that it was a foregone conclusion that the content exists since it had already been seen by the customs agents, Boucher's encryption password "adds little or nothing to the sum total of the Government's information about the existence and location of files that may contain incriminating information." , a district court judge ordered a Colorado woman to decrypt her laptop so prosecutors can use the files against her in a criminal case: "I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," Colorado U.S. District Judge Robert Blackburn ruled on January 23, 2012. In Commonwealth v. Gelfgatt, the court ordered a suspect to decrypt his computer, citing exception to Fifth Amendment can be invoked because "an act of production does not involve testimonial communication where the facts conveyed already are known to the government...". However, in United States v. Doe, the ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment. The may also issue s that require the disclosure of keys for investigative purposes. One company, , chose to shut down rather than surrender its master private keys due to the government wanting to spy on Edward Snowden's emails. Since the summer of 2015, cases have been fought between major tech companies such as Apple over the regulation of encryption with government agencies asking for access to private encrypted information for law enforcement purposes. A technical report was written and published by , where , an inventor of , and , a computer science professor at MIT with others, explain the technical difficulties, including security issues that arise from the regulation of encryption or by making a key available to a third party for purposes of decrypting any possible encrypted information. The report lists scenarios and raises questions for policy makers. It also asks for more technical details if the request for regulating encryption is to be pursued further. References Category:Know your rights